Basavaraj Dandappa Bada vs Saleem Sha

B. Veerappa, J. - MFA No. 31798/2013 is filed by the claimant for enhancement of compensation and MFA No. 31716/2013 filed by the insurance company on the ground of shifting the liability to pay compensation by the insurance company.

These two appeals are filed against the impugned judgment and award dated 14-2-2013 made in MVC No. 709/2011 on the file of the I-Additional Senior Civil Judge and MACT Gulbarga, awarding compensation of Rs. 2,95,000/- along with interest at 6% per annum from the date of petition till the date of realization.

It is the case of the claimant before the Tribunal that on 17-9-2010 at about 4.45 p.m., the claimant was standing in front of the bus-stand at Sedam to go to Kalagi. At that time, one autorickshaw bearing No. KA-32-4806 came from market side in a high speed and in a rash and negligent manner and dashed against the claimant, due to which, the claimant fell down and sustained grievous head injuries. Immediately, he was shifted to the Government Hospital, Sedam. Thereafter, he was shifted to Ashwini Hospital, Sedam. Thereafter, he was shifted to Ashwini Hospital. Solapur and he was operated and further he was shifted to SCSMSR Hospital, Solapur and he was admitted as in-patient for one month. It is further stated that surgery department has treated for head injury which has incurred huge medical expenses. It is also stated that he was earning Rs. 5,000/- per month from tailoring and income from agriculture. It is stated that he could not able to work as before after the accident. Therefore, he has sought for compensation as prayed in the claim petition.

The first respondent remained absent and placed ex parte. The second respondent filed written statement denying the averments made in the claim petition with regard to age, occupation and also income of the claimant and also nature of the accident. It is further contended that offending vehicle was insured with respondent No. 3, as such, he is not liable to pay compensation. The third respondent-insurance company filed written statement denying the age, occupation, income and also the nature of the accident and contended that the driver of the offending vehicle was not holding valid and effective driving licence at the time of the accident and also violated the terms and conditions of the policy. It is stated that accident has occurred due to the negligence of the claimant as it is apparent from the sketch map that the alleged accident has occurred in the middle of the road. Therefore, the claimant himself was responsible for the accident and therefore, prays for dismissal of the claim petition.

Based on the pleadings of the parties, the Tribunal framed the following issues :

Whether the petitioner proves that on 17-9-2010 at about 4.45 p.m. the petitioner was standing in front of the Bus Stand at Sedam to go to Kalagi, at that time one Auto Rikshaw brg. No. KA-32/4806 being driven by its driver came from Market side in high speed and in rash and negligent manner dashed to the petitioner, due to which the petitioner fell down and sustained grievous head injuries in the accident?

Whether respondent No. 2 proves that the driver of the offending vehicle was not holding valid and effective Driving license at the time of accident and also violated the terms and conditions of the policy?

Whether the petitioner is entitled for compensation? If so, what amount and from whom?

What order or award.

In order to substantiate his claim, the claimant was examined as PW. 1 and also examined General Surgeon by name Dr. Rajendra Kothari as PW. 2 and got marked the documents at Exs. P1 to P12. The third respondent examined his official, as RW. 1 and got marked the documents at Exs. R 1 and R 2.

After considering the entire material on record, the Tribunal recorded a finding that the claimant has proved that he has sustained grievous head injuries on account of the accident occurred on 17-9-2010 due to the rash and negligent driving of the autorickshaw bearing No. KA-32/4806 and the second respondent failed to prove that the driver of the offending autorickshaw was not holding valid and effective driving licence at the time of the accident and also violated terms and conditions of the policy. Therefore, the claimant is entitled to compensation. Accordingly, by the impugned judgment and award dated 14-2-2013, the Tribunal awarded compensation of Rs. 2,95,000/- along with interest at 6% per annum from the date of petition till the date of realization. Hence, the claimant filed MFA No.31798/2013 for enhancement and the insurance company filed MFA No. 31716/2013 aggrieved by the shifting of liability on the insurance company to pay the compensation.

I have heard the learned counsel appearing for the parties to the lis.

Smt. Anuradha M. Desai, learned counsel for the claimant has vehemently contended that the Tribunal has proceeded to take income of the claimant at Rs. 5,000/- per month and disability at 17.5% which is contrary to the evidence of PW. 1 and PW.2 - Dr. Rajendra Kothari. She has further contended that the award passed by the Tribunal in respect of other heads is on the lower side. Therefore, she has sought for further enhancement.

Per contra, Smt. Sangeeta Bhadrashetty, learned counsel appearing for the insurance company has contended that the impugned judgment and award passed by the Tribunal shifting the responsibility on the insurance company is erroneous and contrary to law and admittedly, as on the date of the accident, the driver of the autorickshaw was not holding valid and effective driving licence. Therefore, shifting the liability on the insurance company does not arise. She also contended that the date of accident as reflected in the wound certificate issued by the General Hospital, Solapur is 16-9-2010 and not 17-9-2010 as alleged by the claimant. Therefore, the claim itself is falsified. Therefore, the insurance company is not liable to pay any compensation and she sought to set aside the impugned judgment and award passed by the Tribunal by allowing the appeal filed by the insurance company and dismiss the appeal filed by the claimant.

In view of the rival contentions urged by the learned counsel for the parties, the point that arise for consideration in the present appeals is:

"Whether the claimant is entitled for enhancement of compensation in MFA No. 31798/2013 and whether the insurance company has proved that it is not liable to pay compensation awarded by the Tribunal in MFA No. 31716/2013?"

I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record.

It is an undisputed fact that the claimant sustained head injuries right temporal contusion sub-dural (SDH) Hematoma Craniotomy done and evacuation of Hematoma on account of the accident occurred on 17-9-2010 due to rash and negligent driving of the driver of the auto rickshaw bearing No. KA-32/4806. According to the Insurance Company the driver of the offending vehicle was not holding valid and effective driving license at the time of the accident and highlighted the terms and conditions of the policy. The claimant examined as PW-1 specifically stated on oath that as on the date of the accident the policy was in force and the first respondent was holding valid driving license therefore the Insurance Company is liable to pay compensation. In order to prove his case he has produced Exs. P-1 to P-12 and to prove disability has examined Dr. Rajendra Kothari as PW-2. RW-1 Mr. I. Samba Murthy was examined on behalf of the respondents. He has stated on oath that the driver of the offending auto rickshaw did not possess valid and effective driving license. But no material document is forthcoming to prove that there was no valid and effective driving license as on the date of the accident except a certified copy of the notice issued to the owner is produced.

The Insurance Company has filed I.A. IV under Order 16, Rule 6 read with Section 151 of CPC for direction directing the owner of the auto rickshaw for production of documents stating that the first respondent owner of the vehicle has not submitted driving license particulars of drivers and also particulars of RC permit of involved vehicle. The Tribunal considering the said application by an order dated 22-1-2013 specifically recorded a finding that it clearly indicates that the insurer wants to put burden upon the Court to get those documents. In my opinion burden is upon the insurer to prove the validity of DL, validity of coverage of insurance also. Thus, it is the duty oi the Insurer to prove such defence independently without taking assistance of anybody and the said application was filed at a belated stage. Accordingly, the said application was rejected. The said order is final and conclusive. In view of the same, the contention of the learned counsel for the appellant in MFA No. 31716/2013 that the driver of the offending auto rickshaw did not possess valid and effective driving license cannot be accepted. Since the Tribunal has already recorded a finding that it is the Insurance Company who has to prove by producing documents independently and in the absence of the same the contention of the learned counsel for the Insurance Company that wrongly shifting of liability to pay compensation on Insurance Company cannot be accepted and Insurance Company is liable to pay the compensation.

The Tribunal while considering the contention advanced by the Insurance Company at issue No. 2 recorded a finding that the policy Ex. R1 was in force as on the date of the accident, no documents are forthcoming to prove that the driver of the offending vehicle was not possessing valid and effective driving license as on the date of the accident and mere production of copy of the notice is not sufficient to prove that the driver of the offending vehicle was not possessing valid and effective driving license. Therefore, the respondent Insurance Company has failed to establish that the driver of the auto rickshaw did not possess valid and effective driving license. Accordingly, issue No. 3 was held in the negative against the Insurance Company.

In order to prove the income, the claimant has mentioned that he was earning Rs. 5,000/- from tailoring and income from the agriculture though no material documents are produced. Taking into consideration the age of the claimant as 35 years as per Exs. P 5, P 6, P 7 and P 8 the age of the claimant differs from 30 to 37 years. Therefore, the age of the claimant can be taken as 35 years and the income of the deceased at Rs. 5,500/- per month. The doctor who examined claimant as PW-2 has specifically stated on oath that he has issued disability certificate as per Ex. P 8. He has assessed disability at 60% in respect of lower limb and upper limb due to speech defect, forget fullness and facial paresis etc. he has assessed 30% disability due to the hemiperesis and Ex. P-11 CT Scan report clearly reveals everything normal except evidence of craniotomy in right parietal region. In these circumstance the Tribunal was of the opinion that 14th has to be taken accordingly he assessed at 17.5%. Taking into consideration the head injuries sustained by the claimant and medical records produced clearly indicates that he has sustained 70% of the disability and therefore the Tribunal was not justified in taking 14th instead of ⅓rd, ⅓rd disability would be 24%. Taking into consideration the income at Rs. 5,500/- age 35 years, the loss of future income comes to Rs. 2,53,440/-.

The Tribunal while awarding the compensation in respect of other heads has proceeded to award meagre amount which are wholly inadequate with reference to the gravity of the fractures sustained by the claimant. Therefore, it requires enhancement accordingly, the point raised in the appeal has to be held in the affirmative in part holding that the claimants have made out a case for enhancement and the Insurance Company has not made out a case for interference.

On re-consideration of the entire material on record, both oral evidence of PW-1 and 2 and RW-1 material documents Exs. P1 to P 12 and Exs. R1 and R2 and taking into consideration the medical report and the evidence of doctor and the fractures/head injuries sustained by the claimant, he is entitled to enhanced compensation as under :

1

Loss of future income

Rs. 2,53,440/-

2

Pain and suffering

Rs. 50,000/-

3

Loss of amenities in life -

Rs. 50,000/-

4

Medical expenses -

Rs. 82,692/-

5

Diet, nourishment, attendant charges etc.

Rs. 20,000/-

6

Loss of earning during laid up period

Rs. 35,000/-

Total

Rs. 4,91,132/-

In all the claimant is entitled to a total compensation of Rs. 4,91,132/- as against Rs. 2,95,000/- awarded by the Tribunal. The total enhanced compensation would be Rs. 1,96,132/-.

In view of the aforesaid reasons, MFA No. 31798/2013 filed by the claimant is allowed in part. The impugned judgment and award passed by the Tribunal dated 14-2-2013 made in MVC No. 709/2011 on the file of the Additional Senior Civil Judge and MACT, Kalaburagi is modified and the claimants are entitled to enhanced compensation of Rs. 1,96,132/- with 6% interest from the date of petition till the date of realisation.

MFA No. 31716/2013 filed by the Insurance Company is dismissed in view of the aforesaid reasons on the point raised in the appeals by allowing the appeal filed by the claimants. No order as to costs.